Homelessness Is Not a Crime

Cities are increasingly punishing people who have nowhere to go—and few Americans, including Democrats, seem to care.

May 10, 2019

Denver received national attention this week after voters there passed Initiative 301 to decriminalize hallucinogenic mushrooms. The result of Initiative 300, which would have repealed the city’s ban on public camping and sleeping under a blanket, passed with almost no notice beyond the local press.

Initiative 300’s proponents described it as a “right to survive” measure, since arresting and prosecuting homeless people for committing an essential human activity makes it that much harder for them to escape the streets. Most voters saw it differently. While they voted to decriminalize the recreational consumption of hallucinogens by a modest margin, they overwhelmingly chose to keep criminalizing homeless people for sleeping outside: 82 percent of them voted no on Initiative 300.

The result is a jarring contrast to the national discourse on poverty and inequality. Democratic presidential candidates have released a cornucopia of policy proposals on housing, unemployment, and healthcare. But none of them has proposed a plan specifically to help the estimated 500,000 Americans who face homelessness each year. That omission is a troubling reflection of this country’s view of homeless people and their place in American society.

Denver is far from alone in making life harder for the homeless. The National Law Center on Homelessness and Poverty recently found that, among the 187 major cities the group tracks, 34 percent banned camping citywide and 59 percent banned it in certain public spaces. A majority of cities banned loitering, begging, or sitting or lying down in some public areas, while between a quarter and a third of them banned each of those acts everywhere. Forty-three percent banned sleeping in vehicles.

“Criminalization measures, rather than solving the underlying causes of homelessness, create additional barriers to accessing employment, housing, and public benefits needed to escape life on the streets,” NLCHP’s report concluded. And yet, the group found, such measures have largely increased since its last survey, in 2011. That may be due in part to the generous support such efforts receive: The campaign to defeat Initiative 300, which had the nerve to call itself “Together Denver,” raised near-record amounts of funding from local business organizations.

It’s no coincidence that some of the most unequal and expensive cities in the country, like San Francisco, New York City, and Washington, D.C., also have the largest populations of homeless people. The absence of affordable housing can force lower-income people onto the streets, and yet such cities—which are dominated by Democrats, it should be said—are often reluctant to leverage their substantial tax base to fund enough lower-income housing or even homeless shelters. It seems NIMBYism is an even more powerful force than political ideology.

This shortsightedness has its own costs. By criminalizing public sleeping and similar acts, businesses and city governments are treating homelessness as an aesthetic problem instead of a moral and economic one. Many cities are trying to make public spaces as uncomfortable as possible for homeless people by tearing out benches, replacing covered bus stops with leaning posts, and adding ornamental spikes to ledges or other flat surfaces. When homeless people then seek other places to rest, socialize, or make money, they’re arrested and funneled into the criminal justice system—the default social safety net in American life.

With Democrats failing to lead on the issue, reformers’ hopes currently rest on the courts. Last September, the Ninth Circuit Court of Appeals ruled in Martin v. City of Boise that the Eighth Amendment forbids arresting people for sleeping outdoors if they don’t have anywhere else to go. The decision drew upon a 1962 Supreme Court ruling that struck down state laws criminalizing addiction to narcotics, holding that the government could not punish someone for a medical condition over which they had no control. “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors on public property on the false premise that they had a choice in the matter,” the panel concluded.

Boise said last fall that it would appeal the panel’s ruling to the Supreme Court. Until then, the decision acts as binding precedent within the Ninth Circuit’s jurisdiction. That includes the five states—California, Hawaii, Nevada, Oregon, and Washington—with the highest rates of unsheltered homeless people in the country, according to Department of Housing and Urban Development statistics from 2018. Governing magazine reported that several major cities across the West Coast, including San Francisco, Portland, and Olympia, have scaled back or abandoned their anti-camping policies. Colorado, which lies within the neighboring Tenth Circuit’s bounds, isn’t affected by the decision.

Because it plays out at a city level, homelessness rarely becomes a national policy issue. Though none of the Democratic presidential candidates have homelessness plans per se, some have put forth housing proposals that may help. Elizabeth Warren and Kirsten Gillibrand co-sponsored federal legislation in March that would aim to produce more than three million new housing units nationwide and reduce rents by 10 percent. Cory Booker and Kamala Harris have each released affordable housing bills this year that, as Vox’s Dylan Matthews noted in February, effectively double as anti-poverty bills.

Some candidates have more experience on the subject than others. Booker worked at a nonprofit legal group for the homeless in Newark in the 1990s after he graduated from law school. But that experience can cut both ways. Pete Buttigieg, as mayor of South Bend, Indiana, has drawn scrutiny for an urban-redevelopment plan he championed that demolished hundreds of homes in largely black and Hispanic neighborhoods, as well as the higher-than-average eviction rate in his city. In 2018, he announced that the city couldn’t ban camping under a major viaduct, but that city officials would routinely clean it with specialized trucks, thereby forcing people there to relocate their belongings each time. (Buttigieg’s husband, Chasten, was once homeless.)

A major challenge for homelessness policy is that it bleeds into so many other traditional policy spheres. Many of the Democratic nominees have brushed up against it in passing when they discuss access to mental health care, affordable housing policies, support for returning veterans, criminal justice reform and broad-scale anti-poverty programs. That’s not enough, though. A specific set of policies focused on homelessness could move the issue from the periphery to the forefront of the national debate. With cities like Denver choosing a more punitive and shortsighted path, it’s up to national figures to provide an alternative.

What would that alternative look like? The NLCHP’s report from earlier this year included a litany of policy recommendations at the federal level that could work as a starting point. Most of them centered around redirecting HUD’s homeless assistance funds and the Justice Department’s community policing grants away from cities and towns that criminalize homelessness. The report also suggested that the DOJ’s Civil Rights Division investigate police departments for violations of homeless people’s civil rights. In 2015, the Obama administration filed a brief siding with the defendants in the Boise case. The next Democratic administration could follow that precedent in similar cases across the country when they arise.

This should be an easy call for the candidates. Many of them have put themselves forward as champions of those dispossessed by rising inequality and the Great Recession’s housing crash. They’ve also largely rejected policies that use punishment in a misguided attempt to solve social issues, like drug tests for welfare recipients or mandatory minimum sentences. No president can reverse the criminalization of homelessness by themselves, but it’s not clear that any of the candidates care to try.